New Justice Could Hold the Key to Presidential Power

WASHINGTON — As President Obama prepares to replace Justice David H. Souter on the Supreme Court, conventional wisdom says his nominee will have little chance to change the court because all the contenders appear to share Justice Souter’s approach on social issues, like abortion rights.

But the effect on presidential power could be pivotal. Important rulings on executive authority — striking down military commissions and upholding habeas corpus rights for Guantánamo detainees — have been decided by a five-vote majority, including Justice Souter, on the nine-member court.

“Given that the decisions have generally been 5-4 in this area, this could be terribly consequential,” said David Golove, a New York University law professor. “We’re losing one of the court’s strongest leaders on the side of limiting executive power to reasonable bounds. If the person who replaces Souter is different than him, the balance of power may shift.”

Most of the half-dozen or so candidates Mr. Obama is weighing have little by which to gauge whether their appointment might create a majority with greater sympathy for the White House.

But one, Judge Diane P. Wood of the United States Court of Appeals for the Seventh Circuit, has expressed doubts about claims of sweeping executive powers in national security matters. Another, Solicitor General Elena Kagan, has a history of advocating for presidential powers in domestic matters, along with a mixed record of statements on counterterrorism issues.

The scope of executive power has become the subject of a profound debate since the Sept. 11 attacks. Bush administration lawyers argued that the president’s war powers could override laws and treaties, a theory at the heart of policies on harsh interrogations, surveillance without warrants and the detainees at the prison at the naval base in Guantánamo Bay, Cuba.

Some of former President George W. Bush’s greatest setbacks came when the Supreme Court rejected such arguments. And while Mr. Obama has not embraced the Bush administration’s most expansive theories, he appears to be on his own collision course with the court.

His administration is appealing a ruling that some detainees in Afghanistan have habeas corpus rights. And he has announced other policies, including revised military commissions and a system of prolonged preventive detention without trial, that are likely to be challenged.

Moreover, the broad powers Mr. Obama has employed in the economic crisis, like his virtual takeover of the American auto industry, could generate a new category of cases that would turn on how much deference the court gives to the executive branch.

“If Obama is really serious about national security, he ought to be looking for a justice who won’t try to micromanage in this area,” said Ed Whelan, a Bush administration lawyer. “He’ll also want a strong proponent of executive power to review his aggressive domestic measures.”

By contrast, one person near the top of Mr. Obama’s short list — Judge Sonia Sotomayor of the United States Court of Appeals for the Second Circuit — has never worked in the federal executive branch and sits on a court that hears few executive power cases.

Two other potential candidates, Janet Napolitano and Jennifer M. Granholm, have been governors, and Ms. Napolitano is now the homeland security secretary. Still, neither has worked extensively on legal issues about presidential power.

Judge Wood has served several stints in the executive branch, where her work focused on antitrust issues. But in a 2003 essay, she warned that steps proposed in the fight against terrorism, like diminishing privacy to facilitate executive surveillance, posed a threat to the rule of law.

“In a democracy, those responsible for national security (principally, of course, the executive branch) must do more than say ‘trust us, we know best’ when they are proposing significant intrusions on liberties protected by the Constitution,” she wrote.

And in a lecture about legal issues related to natural disasters, published in 2008, Judge Wood suggested that she would view trying terrorism suspects in military commissions, as Mr. Obama has proposed, with suspicion.

“In the related area of military justice, the principle is well established that extraordinary tribunals, such as military commissions, are not authorized to operate if the normal courts are open for business,” she wrote.

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Ms. Kagan’s history, by contrast, suggests a greater sympathy for executive interests. She worked in the White House under President Bill Clinton when he was at odds with a Republican Congress and seeking ways to achieve his agenda unilaterally.

As a Harvard law professor, she wrote an article defending steps Mr. Clinton had taken to centralize control over government agencies. She called it “ironic” that “self-professed conservatives” had been the loudest advocates of executive power in recent decades because a muscular presidency could change the status quo and achieve “progressive goals.”

She also argued that the president had more power to command agency decisions than many scholars believed. Unless Congress has explicitly banned White House interference, she said, laws granting authority to an official — like giving the Environmental Protection Agency administrator the responsibility to set allowable pollution levels — should be interpreted as giving the president an unwritten power to override those decisions.

Later, in her solicitor general confirmation hearing, Ms. Kagan said the president had the authority to indefinitely detain, without a trial, someone suspected of helping to finance Al Qaeda.

She also said that she, like any solicitor general, would not defend a statute that “infringes directly on the powers of the president,” because “there are occasional times where presidential power still exists, even if Congress says otherwise.” But, she added, that category was “exceedingly narrow.”

After her mid-March appointment, she joined a legal team that has battled to restrict detainee rights and has invoked the so-called state secrets privilege to block lawsuits involving surveillance and torture.

Much of that litigation was in motion before she arrived, and it is not clear whether, if named to the bench, she would recuse herself from ruling on such cases.

But Ms. Kagan has also expressed skepticism about expansive presidential war powers. In 2007, she delivered a lecture at West Point praising Bush administration lawyers who threatened to resign over the program of surveillance without warrants, which they believed was illegal.

“The world is watching whether, under this provocation, we adhere to our self-declared principles,” she said. “And the world will properly condemn us to the extent we become lawless.”

Whoever replaces Justice Souter will join a court whose members hold strong opinions on both sides of the executive power issue.

In the decision striking down military commissions, for example, Justice Anthony M. Kennedy said trials controlled by the executive alone raised constitutional concerns “of the highest order” because “concentration of power puts personal liberty in peril of arbitrary action by officials.”

In a dissent, Justice Clarence Thomas said the majority’s opinion had “dangerous implications for the executive’s ability to discharge his duties as commander in chief” and “openly flouts our well-established duty to respect the executive’s judgment in matters of military operations and foreign affairs.”

This article has been revised to reflect the following correction:

Correction: May 25, 2009Due to an editing error, a version of this article indicated that Sonia Sotomayor had never worked in the executive branch. She has never worked in the federal executive branch.